JUDGMENT : (1) Heard Sri Vimal Kumar, learned amicus curiae for appellant, Sri Krishna Pahal, learned A.A.G. assisted by Sri Om Narin Tripathi, learned A.G.A. Ist, Sri Jitendra Kumar, Sri Sanjay Kumar Rajbhar Sri Nafesh Ahmad, Sri Bhanu Prakash Singh and Sri Ajay Kumar Singh, learned A.G.As/brief holder of the State and perused the record of this appeal. (2) By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 14.02.1991 passed by II Additional Sessions Judge, Shahjahanpur, in Sessions Trial No.413 of 1989 (State Vs. Ata Ullah @ Antu Shah and another), arising out of case crime no.183/1989, under Sections 302 read with Section 34 IPC, Police Station - Tilhar, District-Shahjahanpur, whereby appellant has been sentenced to imprisonment for life. (3) Brief story as reflected from the FIR appears to be that an FIR was lodged by the informant-Munisha Begum P. W.1on 28.05.1989 at 5.00 P.M. in Police Station-Tilhar, District-Shahjahanpur at Case Crime No.183, under Sections 302 IPC against three persons including the present appellant-Ataullah @ Antu Shahto the effect that one and half months ago some incident of dacoity took place in the house of the appellant, wherein, son of the appellant-Shafi Ullah @ Lalua was murdered. In that incident, Ataullah @ Antu Shah had named husband of the informant-Shahbuddinand the cousin brother of the informant-Chaman Shah on account of enmity. Chaman Shah had surrendered and obtained bail from the court concerned, and the police and the family members of appellant were searching Shahbuddin (husband of the informant), as the appellant along with his father-in-law Nanhey Shah were intending to kill the husband of the informant prior to the completion of 'chaliswa' ceremony after the death of the son of the appellant. The F.I.R. adds that on the fateful day of occurrence i.e. on 28th May, 1989 at about 4 P.M. the informant was going to take medicine for her son along with deceased-Shahabuddin and jeth (brother-in-law) Babu Shah, while on way they reached near Tonga Stand in Maujampur Market Tilhar, then the elder brother of the informant-Banney Mian also met them but the informant Munisha Begum P. W.1 began to converse with her brother. In the meanwhile, Ataullah @ Antu Shah and the two others Nanhey Shah and his elder brother Sabir Shah appeared on the scene and caught hold of informant's husband and at the exhortation of the appellant, Nanhey Shah and Sabir Shah took out their knives and began to assault Shahabuddin (informant's husband) with the same. The informant husband somehow retrieved himself and tried to scamper away, but he was caught again by the appellants and was given knife blows and in the process Ataullah @ Antu Shah whipped out his country made gun and pointed it on the chest of the deceased and fired due to which informant's husband fell down and died. On the alarm of the informant the accused ran away towards Chakki. It was requested that report be lodged against the accused and action be taken. This report is Exhibit Ka1. (4) Relevant entries were made in the concerned check F.I.R. at Case Crime No.183/1989, under Section 302 I.P.C. at Police Station-Tilhar, District-Shahjahanpur, which is on record as Ex. Ka.3. (5) Pursuant to the entries so made in the check F.I.R., a case was registered against the accused at Rapat No.35 dated 28.05.1989 at 17.00 hours in the concerned General Diary at aforesaid case crime number under aforesaid section of Indian Penal Code, copy whereof is on record as Ex.Ka.12. (6) The investigation was entrusted to P.W.3 S.I. Sri R.S. Bora. He has proceeded to the spot and prepared the inquest report of deceased. It commenced 6.00 P.M. and concluded at 7.30 P.M. on 28.05.1989, which is on record as Exhibit Ka4. The relevant papers were also prepared at the same time-say-photo of dead body (photo nash) Exhibit Ka5, Challan dead body-Exhibit Ka6, letter to C. M. O. Exhibit Ka7, Specimen seal-Exhibit Ka8. He has also collected the blood stained soil and simple soil and kept it in different containers and prepared a Fard, copy whereof is on record as Exhibit Ka10. He has inspected the place of occurrence and prepared the site plan, which is Exhibit Ka9. (7) After completing the necessary formalities, the cadaver of deceased was sent for postmortem examination. Postmortem examination on the cadaver of deceased was conducted on 29.05.1989 at 04.40 P.M. by Dr. O.P. Khatri P.W.6, wherein the following ante-mortem injury was noted at the time of examination: Ante mortem injuries 1. (7) After completing the necessary formalities, the cadaver of deceased was sent for postmortem examination. Postmortem examination on the cadaver of deceased was conducted on 29.05.1989 at 04.40 P.M. by Dr. O.P. Khatri P.W.6, wherein the following ante-mortem injury was noted at the time of examination: Ante mortem injuries 1. One gunshot wound of entry rounded in shape on the right side of chest in 6 O'clock position. The edges were wragged and there was blackening and scorching around the injury. 2. Incised wound 3 cm x 1 cm x 1 cm on the left side of chest. 3. Incised wound 2.5 cm x 1.5 cm x muscle deep on the right side of stomach, 8 cm away from the injury no.1. 4. Multiple incised wound (6) on the back at left side. Among these wounds many wounds were big up-to muscle and some of them were deep up-to back boon. The bigger wound is 2.5 cm x 1 cm and smallest wound is 1 cm x 1.5 cm. But all the multiple incised wounds are in the area of 28 cm x 14 cm. 5. Multiple incised wounds (4) on the left forearm each wound is 2.5cm x 1cm x muscle deep and all the incised wounds are in the area of 26 cm x 4 cm. 6. Abrasion 3cm x .1 cm in the root of index finger of right hand. In the opinion of doctor, cause of death was stated to be shock and the ante-mortem injuries. The postmortem report is Exhibit Ka13. (8) Statement of the prosecution witnesses was recorded and after completing the formalities charge-sheet Exhibit Ka11was filed against the accused. Consequently, the trial commenced and trial Judge charged the accused under Section 302/34 IPC for committing murder of deceased on 28.05.1989 around 4.00 P.M. within police station-Tilhar, District-Shahjananpur. The Charge was read over and explained to the accused, who denied the charge and opted for trial. (9) In turn, prosecution was asked to adduce its testimony in order to prove the guilt. The prosecution produced in all six witnesses out of whom, two are the witness of fact and the rest four are formal witnesses. Brief reference of the prosecution witnesses is utinfra: Munisha Begum P.W.1 is the first informant and he has proved written report Ext. Ka.1. The prosecution produced in all six witnesses out of whom, two are the witness of fact and the rest four are formal witnesses. Brief reference of the prosecution witnesses is utinfra: Munisha Begum P.W.1 is the first informant and he has proved written report Ext. Ka.1. Banney Mian is the P.W.2 and he is also a witness of fact and elder brother of the Munisha Begum P.W.1. Ranjeet Singh Vora P.W.3 is the Investigating Officer of this case. Bhim Sen Sharma is the P.W.4. Samar Pal Singh is P.W.5. He has proved the FIR which is Exhibit Ka3 and the copy of the GD as Exhibit Ka12. Dr. O.P. Khatri P.W. 6 has conducted postmortem and has proved postmortem examination report as Exhibit Ka13. (10) Except as above, no other evidence was produced and the statement of the accused was recorded u/s 313 Cr.P.C., wherein, he claimed to have been falsely implicated on account of enmity and witnesses were not present on the spot. (11) However, no evidence was led by the defence. (12) Consequently, the case was posted for hearing of arguments. After considering the case on its merits and appraisal of facts and circumstances and evaluation of evidence on record, the learned trial judge returned aforesaid finding of conviction against the accused and sentenced him to imprisonment for life, which paved way to this appeal. (13) It has been succinctly claimed on behalf of the appellant by Amicus Curiae Sri Vimal Kumar that ocular testimony of the occurrence cannot be accepted to be truthful version on account of certain facts so strewn on point of availability of the informant P.W.1 Munisha Begum on the spot at the time of the occurrence at 4.00 P.M. for the specific reason that it is virtually established that the informant was having strange relationship with her husband the deceased at the time of the occurrence and was residing separately at her parental home, therefore, there was no point in accompanying the deceased up to the spot where the incident occurred. It is specific defence of the accused that the informant after the occurrence took place was called on the spot and after that only the report was managed and lodged. It is specific defence of the accused that the informant after the occurrence took place was called on the spot and after that only the report was managed and lodged. There are material contradictions regarding the very origin of the incident to the magnitude that the deceased was accompanying the informant from his house and on reaching up to the spot (place of occurrence) the brother of the informant-Banney Mian P.W.2 also met her and while conversing at Mozampur Bazar in front of some hotel, the incident was caused. In fact nothing of the sort ever occurred and no one saw the occurrence. The deceased was having criminal antecedent and a number of criminal cases were lodged against him and there is every possibility of he being killed by others, who are not in the light for the time being and the accused, who had enmity with the informant under impression of strong suspicion and high motive to falsely implicate the accused, the informant has cooked up a false story in collusion with the police after the incident had occurred. The FIR is ante-timed. The presence of the another eye witness P.W.2Banney Mian is also not believable and acceptable situation under facts and circumstances of the case for the reason that he (P.W.2) resides at far off place from the place of occurrence and as per his own statement, he used to work at the tailoring shop right from 7.30 A.M. up-to 5 P.M. There is no explanation as to how and under what circumstances he reached at the spot and witnessed the incident. In the absence of any such conspicuous testimony as adduced by P.W.2, his presence on the spot cannot be believed to be natural one and fact of his presence on the spot must be discarded as such. It is a case of blind murder. Prosecution story is full of a number of infirmities even the Investigating Officer has not investigated properly. The inquest report does not bear the signature of the informant or his brother P.W.1 Munisha Begum and P.W.2 Banney Mian, respectively, whereas the prosecution case is that they were present on the spot at time of preparation of the inquest report, which is Exhibit Ka.4. The inquest report does not bear the signature of the informant or his brother P.W.1 Munisha Begum and P.W.2 Banney Mian, respectively, whereas the prosecution case is that they were present on the spot at time of preparation of the inquest report, which is Exhibit Ka.4. (14) A cumulative reading of the entire merit, vis-a-vis, the evidence on record would not inspire confidence and the prosecution has not proved to the hilt the case of the accused within the four corners of Section 300/302 IPC and the trial court was ignorant of the vitality of the law to be applied in the case has recorded erroneous finding of conviction. (15) Leaned A.A.G. has supported the presence of the prosecution witnesses particularly P.W.1 Munisha Begum and P.W.2 Banney Mian on the spot at the time of occurrence and has stated that their testimony does not vacillate on the point of main occurrence as to how it started, how it culminated into death of the deceased the husband of the informant-Shahabuddin. In so far as the contradictions are concerned, the same appear to be minor and there is nothing material reflected throwing any doubt on the point of occurrence. Occurrence itself is established and it went unchallenged. There is no point in sparing the real culprits and involving false person. (16) In the wake of rival claim, the moot point that arises for adjudication of this appeal relates to the fact as to whether the prosecution has been able to prove its case beyond all reasonable doubt against the appellant? (17) While scrutinizing the record and particularly evaluating the testimony of the prosecution witnesses of fact, we are required to evaluate the same vis a vis prevailing facts and the circumstances of this case and need to be addressed at this juncture. In so far as the contention regarding the FIR being ante-timed is concerned, then we have before us the F.I.R., Exhibit Ka1, and the Check F.I.R. Exhibit Ka3 as well, which when read conjointly with the testimony of the concerned Head Moharir P.W.5 Samar Pal Singh indicates that the F.I.R. was lodged at Police Station-Tilhar at 5 P.M. soon after the occurrence which took place at 4.00 P.M. at locality-Mauzampur Bazar. The distance of the police station from the place of occurrence is stated to be 1 Km. The distance of the police station from the place of occurrence is stated to be 1 Km. The argument of the appellant is that the informant-Munisha Begum was called from her parental home, thereafter the report was lodged after deliberation with the police. (18) This argument is bald without any supportive materiel and does not stand test of scattered facts and the prevailing circumstances of this case so as to give credence to the claim so raised by the appellant's counsel that it so occurred and no one saw the occurrence and the informant-Munisha Begum was not present on the spot. There is nothing on record, which may show that the informant was called from her parental home and only then the proceeding of the case took place. On that particular aspect certain variations or vacillations are there creeping in the description of the post-incidental follow up, but that would not throw any doubt on the occurrence as the lodging of the FIR is prompt after the incident at 5 P.M. at Police Station-Tilhar, therefore, mere argument would not work in the absence of any cogent supporting material and circumstance of the case therefore, the argument regarding the FIR being ante-timed false flat. (19) Now, we come over to the contention regarding presence of the prosecution witnesses on the spot at the time of occurrence. The two ocular versions have come-forth in the shape of the description of the occurrence and both the eye witnesses P. W.1 and P.W.2, respectively, have supported the prosecution version in the manner and the style, as has been described in the FIR itself that it was around 4 P.M. when Babu Shah, Shahbuddin-informant and Bannay Mian were conversing with each other in the locality Umerpur when the accused in company with other assailants appeared on the spot threatened, exhorted, overpowered the victim and the two other assailants dealt knife blows on him. In the meanwhile, when the deceased retrieved himself from the clutches of the two assailants and tried to escape away from the scene, he was again overpowered and he was fatally dealt with by the assailants jointly and the role of the appellant is stated to be at that point of time he whipped out his gun and caused the fatal shot on the chest of the deceased. This ocular version when tallied with the postmortem examination report, Exhibit Ka13, gives corroboration to the description of the incident described in the first information report as well as in the examination of the two eyewitnesses. There is no whisper of any attendant circumstance, which may lead us to infer that it never happened in that manner, therefore, the point of non-presence of both the eyewitnesses on the spot, cannot be accepted and in regard thereto the argument on this point of the appellant is of no avail. (20) In so far as the role of the Investigating Officer P.W.3 Sri R.S. Vora is concerned, then Investigating Officer has also proved facts that he recorded statement of the witnesses and collected the simple and the blood stained clay from the spot and he has proved the same as Exhibit Ka10. The check FIR has also been proved by P.W.3 and similarly the concerned GD entry of the day when the FIR was lodged and apart from that the relevant documents at the time of the preparation of the inquest have also been duly proved in the shape of photo nash Exhibit Ka5, Challan dead body-Exhibit Ka6, letter to C.M.O. Exhibit Ka7, Specimen seal-Exhibit Ka8, respectively. The site plan was prepared by this witness which he has proved as Exhibit Ka9. There is nothing of the sort, which may throw any doubt regarding the occurrence and the post-incidental processorial development on the spot. Argument to the ambit that the signature of P.W.1 and P.W.2 in the inquest report are missing, would not itself throw away the prosecution case because the post-incidental development is the mindset of the informant and the working nature of the police, who is seized of the matter on the spot and it cannot be held with certainty that this being that happens, therefore, argument advanced to that ambit is also not material on record. (21) In so far as the other aspects of this case are concerned, then certainly we come across minor contradictions appearing in the testimony of P.W.1 Munisha Begum and P.W.2 Banney Mian but that is not substantive in nature, therefore, we unhesitatingly and unequivocally hold that the testimony on record is sufficient for recording conviction of the accused as has been rightly done by the trial court itself. Consequently, charge under Section 320/34 IPC stands proved against the appellant and the incident is consistently established, then the motive in the presence of direct ocular testimony of the two witnesses (P.W.1 and P.W.2) is relegated to the background. The prosecution has proved its case beyond all reasonable doubt. (22) Accordingly, judgment and order dated 14.02.1991 passed by II Additional Sessions Judge, Shahjahanpur, in Sessions Trial No.413 of 1989 (State Vs. Ata Ullah @ Antu Shah and another), arising out of case crime no.183/1989, under Sections 302 read with Section 34 IPC, Police Station-Tilhar, District-Shahjahanpur is affirmed. (23) Consequently, this appeal lacks merits and the same is hereby dismissed. (24) Appellant-Ataullah @ Antu Shahis on bail. His bails bonds and surety bonds are hereby cancelled. He shall be taken into custody forthwith for serving out the remaining part of his sentence. (25) Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.